I. Intent
A. RULE: The actor desires to cause the consequence of his act OR the actor
believes the consequences is substantially certain to result for his act.
1. The act must be volitional
2. Refers to the consequences of the act rather than the act itself
3. Not limited to desired consequences.
4. Malice or Motive
B. Case: Garret v. Dailey - Child pulls chair out from underneath Aunt
1. Intent does not require malice, bad motive, or intent to injure.
2. A child can be held liable for an intentional tort.
a. Age is only a factor when determining the child’s
experience, capacity, or understanding.
b. There is an age below that a child is deemed too young to
form requisite intent.
2. RULE: Intent requires one to perform the action volitionally or that
one knows with substantial certainly the tort will result.
B. Case: Spivey v. Battaglia - Boy teases girl with hug and injures her neck.
1. A party who acts with knowledge and substantial certainty that a particular
result will follow is liable for all results flowing from his act regardless of how
unforeseeable or unreasonable.
I. Mistake or Good Faith
A. Mistaken belief of ownership does not negate intent.
B. Case: Ransom v. Kitner - Mistook dog for wolf and killed dog
1. RULE: Mistake or good faith do not negate intent.
2. Kitner intended to shoot the wolf regardless of the mistake.
II. Mental Illness
A. An institutionalized patient who cannot control or appreciate the
consequences of his conduct cannot be held liable for injuries caused to
those employed to care for the patient, but an action may lie against persons
responsible for caring for the mentally ill person based on negligent
supervision.
B. Case: McGuire v. Almy - Patient injures nurse during fit of rage.
1. RULE: Mental illness does not negate intent.
2. Insane person must be held liable just like normal person would if
intent can be and was entertained.
3. Voluntary intoxication does not negate intent.
4. Transferred Intent
 
 
 
 
I. Transferred Intent for Original Torts
A. Case: Talmage v. Smith - Man throws stick at boys on his roof and injures
one.
 1. RULE: A person who commits any of the five intentional torts and
accomplishes one of them is liable.
2. Smith threw a stick intended to scare Boy A, but instead hit Boy B.
He is liable to Boy B even though it was his original intent.
3. The doctrine does not apply if the tort intended or committed does
not fall within the writ of trespass.
 
I. Battery (Original Intentional Tort)
A. Harmful or offensive contact with a person resulting from an intended act
to cause contact or apprehension of imminent contact.
B. Contact + Intent = Battery
C. Intent for injury is not necessary, just intent to make contact.
D. Motive is irrelevant.
E. Case: Wallace v. Rosen - Lady touched during fire drill and injured.
1. RULE: Customary contacts and contacts reasonably necessary to
common intercourse of life are not a battery.
2. Unless one specifically notifies another of contact dislike, common
contact is not battery.
B. Case: Fisher v. Carrousel - Waiter purposely knocked plate out of man’s
hand.
1. RULE: Contact need not be with the person, but with what is
connected to the person.
2. Contact extends to anything held in one’s hands, clothing, and
substances touching the plaintiff.
B. Case: Mohr v. Williams - Temp. tattoo on patients stomach after surgery
while patient was unconscious.
1. Plaintiff does not need to be conscious of the contact when it
occurs.
 
I. Assault (Original Intentional Tort)
A. An intentional act to place one in apprehension of imminent or offensive
contact, which results in one being placed in apprehension of such contact.
B. No contact in required; just apprehension of contact or substantial
certainty that apprehension will result.
C. Mere vulgar gestures or preparation are not an assault
D. Victim must be aware of attempt to inflict harmful or offensive contact.
E. Case: Western Union Telegraph v. Hill - Drunk employer makes gestures
at employee
1. RULE: One must have the apparent ability to bring about harmful
contact.
2. If one is too far away to execute contact, there is no assault.
 
 
 
I. False Imprisonment (Original Intentional Tort)
 A. The direst restraint by one person of the physical liberty of another
without adequate legal justification.
B. Intent to directly or indirectly confine one to a specific boundary of which
one is conscious of it or harmed by it.
C. Mistake of identity does not negate intent to confine.
D. Case: Big Town Nursing Home .v Newman - Man in nursing home not
allowed to leave and restrained to a chair.
1. RULE: A person unlawfully restrained to a bound area has a cause
of action for false imprisonment.
2. One can be confined to a moving vehicle, city, or state.
B. Refusal to admit is not false imprisonment.
C. Case: Talcott v. National Exhibition Co. - Man left in certain area and
unaware of other stadium escape.
1. RULE: A means of escape is unreasonable if its existence and
presence is unknown.
2. One is not required to escape by known exit if escape puts one in
danger or serious injury.
3. One may not recover for injuries if he could remain imprisoned
without harm.
4. One must be conscious or harmed by the false imprisonment
B. Case: Parvi v. Kingston - Drunk dropped of cannot remember details
1. RULE: Recollection of imprisonment is not necessary if he was
conscious of it at the time it took place.
2. False arrest can coincidently lead to false imprisonment
B. Case: Enright v. Groves - Loose dog arrest for not showing license.
1. RULE: One cannot claim without proper legal authority to arrest
someone and thus detain them.
 
I. Intentional Infliction of Emotional Distress - IIED (Intentional Tort -
Created in 1960’s)
A. Liability exists for conduct exceeding all bounds usually tolerated by
decent society.
B. The defendant causes severe emotional distress, intentionally or
recklessly, by extreme and outrageous conduct.
1. Mere harm is insufficient except in cases of known susceptibility
B. Case: State Rubbish Collectors v. Siliznoff - Garbage Man Beat Up
1. Physical harm is not a requirement but most jurisdictions still
require a physical manifestation of harm.
2. RULE: In the absent of right, one intentionally subjects another to
mental suffering resulting in physical harm.
B. Case: Harris v. Jones - Stutterer teased by Boss
1. RULE: Mere distress is not sufficient. Once must be in a far worse
position than before the situation.
 
I. Case: Slocum v. Food Fair Stores - Woman insulted at grocery store by
employee
 A. RULE: Hurt feelings are insufficient and not severe.
II. Case: Taylor v. Vallenlunga - Daughter secretly watches father beaten
A. RULE: One must either intend to inflict severe emotional distress or know
with substantial certainty that severe emotional distress will result for the
action.
B. Defendant must be aware of Plaintiff’s presence.
II. IIED is likely to occur when the Defendant intentionally inflicts emotional harm
by:
A. Abusing his power or position; Using an authority for dominance.
B. Taking advantage or harming the plaintiff he knows to be especially
vulnerable.
C. Repeating and continuing acts that may be merely offensive and tolerable
when committed once.
D. Plaintiff must not be able to avoid the situation by leaving.
E. Committing or threatening physical acts of violence to a person or
property the plaintiff has an invested interest in.
F. Interference with dead bodies and actions by common carriers and
innkeepers.
G. Doctrine of Transferred Intent is inapplicable.
 
I. Trespass to Land (Original Intentional Tort)
A. Any intentional entry onto, refusal to leave, or use of another’s real
property, without authorization and without a privilege by law to do so, with
regard to harm.
B. Deals with direct and tangible interferences.
C. Case: Daugherty v. Stepp - Entered land to survey it claiming it was his.
1. RULE: The intent to show trespass of land is the intent to enter the
land.
2. Intent to harm land is not required.
3. Motive is irrelevant. One can intend to enter with good faith.
4. Mistake does not negate intent.
B. Entry occurs if…
1. Defendant enters the land
2. Defendant causes another person to enter the land
3. Defendant causes object or thing to enter the land
4. Defendant remains on the land after the invitation has ended
5. Defendant exceeds the permitted use of the land
6. Defendant fails/refuses to remove materials left on the land
B. Case: Herrin v. Sutherland - Hunter shoots birds flying about another’s
property.
1. RULE: Plaintiff’s exclusive right to possess land extends to the air
above it.
2. Airplanes do not trespass unless they are flying too low to be
considered safe.
3. Airplanes can interfere with the plaintiff’s use and enjoyment of
the land
 4. Plaintiff’s possess the land below the surface at a depth where the
owner can make reasonable use of the land.
5. Miners, etc. are allowed to follow the vein of their material.
B. The plaintiff does not need to own the property being trespassed against;
just have exclusive possession.
C. Nominal damages can be given to actual damages need not be proven.
D. Punitive damages cannot be awarded.
 
I. Trespass to Chattels (Original Intentional Tort)
A. Intentional interference with chattels so as to interfere with the plaintiff's
possession in a way that causes recognizable harm.
B. One must dispose another from of the chattel or intermeddle with the
chattel of another
C. Case: Glidden v. Syzbeck - Dog bite to your girl playing with the dog
1. RULE: Harm must be done to the property or there must be
dispossession of the property.
2. There must be actual damages shown to have a trespass to chattel.
B. Intent to trespass on chattel is required for liability.
1. Mistake does not negate intent.
B. Trespass to chattel has been revived by the internet
1. Case: CompuServe v. Cyber Promo - Spam being sent to
subscribers of CompuServe
a. CompuServe servers and systems were harmed.
CompuServe began to lose clients.
b. The harm was done to both CompuServe’s customers and
CompuServe
 
I. Conversion
A. An intentional exercise of dominion or control over a chattel which so
seriously interferes with the right of another to control it.
B. Conversion of chattel happens in the following ways:
1. Receiving it
2. Disposing of it
3. Misdelivering it
4. Refusing to surrender it
B. Case: Pearson v. Dodd - Selling copies of Senator’s documents for
publication
1. Conversion is not applicable in this case.
2. Copies were made, but the originals remained in the same location.
3. RULE: ideas and information are not subject to conversion unless
the idea or info is about literary property, scientific Invention, or secret
commerce plans.
4. Damages are likely to be repayment of fair market value of the
chattel.
 
I. Consent
 A. Consent is an offense to an intentional tort.
B. Willingness in the fact that an act or invasion of an interest shall take
place.
C. One who gives consent to an intentional tort cannot recover damages.
 
I. Case: O’Brien v. Cunard S.S. - Vaccination on a ship
A. She lifted her arm and that led the doctor to believe she consented.
B. The trial judge never allowed the case to go to the jury.
C. Defendant has the burden to prove consent
D. RULE: Consent can be implied by the Plaintiff’s conduct, local customs,
or the party’s prior dealings or relationship.
II. Case: Hackbart v. Cincinnati Bengals - Rough hit during a NFL game
A. Consent is at least implied if not expressed by putting on the uniform
B. One does not consent to ALL contacts in a contact sport
C. RULE: There is no consent to contact outside the rules of the game.
Batteries will lie in these instances for only reckless or intentional act that
were outside the scope of the rules.
II. Case: Mohr v. Williams - Doctor operated on a different ear that what he said
A. No consent for the left ear being operated on.
B. When determining damages -- successfulness of operation will play a role.
C. RULE: Consent can be transferred if a defect in the left ear was found
when operating on the right ear; however, it was found by an independent
evaluation.
II. Consent to life-saving treatment for unconscious patients may be implied where it
is necessary to prevent death.
III. Fraud vitiates consent.
IV. Case: DeMay v. Roberts - House call of non-doctor
A. Dr. is liable for deceit and fraud
B. RULE: Consent obtained by way of fraud or deceit is not true consent.
C. One is under the obligation to provide some information when a tort could
happen.
D. Intoxication may negate capacity to consent.
II. One cannot consent to an act that violates the laws intended to protect a class of
persons the plaintiff belongs to.
A. A 12 year old cannot consent to sex with an adult.
II. Consent obtained through duress is invalid.
III. General Rule: One who consents to act that would otherwise constitute
intentional torts cannot recover for damages for those acts.
 
I. Self-Defense / Defense of Property / Recovery of Property
A. A person is justified in using force against another when and to the degree
the actor reasonably believe the force is immediately necessary to protect the
actor against the other’s use or attempted use of unlawful force.
B. A person is not required to retreat before using force as self-defense.
C. The force used in defense of oneself must match the force one is
threatened with from another.
 1. Civil Immunity exists for deadly force where one cannot be held
liable as long as it was self-defense.
B. Retaliation is not allowed.
C. One must have reasonable belief that there is threat of battery before using
force to defend.
D. Language alone is not enough to provoke defense, but language and threat
of action may be.
E. One is not liable for third party harmed during defense.
F. Case: Katko v. Briney - Spring gun in Empty House
1. RULE: One cannot use deadly force to protect property (especially
if one is not living there).
2. The privilege to defend one’s land is limited to those who enter
unlawfully under criminal activity.
B. General Rule: Possessor of land or chattel is privileged to use reasonable
force when necessary to defense possession against intrusion, taking, harm, or
continuing trespass.
C. One may not eject a trespasser if doing so puts that person in reasonable
physical danger.
D. “Fresh Pursuit” -- Actor is not privileged to use force against another for
the purpose of recaption unless he acts promptly after is dispossession.
E. Demand for property must occur before one uses force to recapture.
F. Self-Help does not extend to real property.
1. Land cannot be dispossessed and taken from its original location.
B. Case: Hodgeden v. Hubbard - Chase man who took stove
1. RULE: Violence to recapture property is not necessary unless taker
shows resistance.
B. Shop Keepers Privilege
1. One who reasonably believes that another has stolen property is
privileged to detain that person in a reasonable manner for a reasonable time
to investigate ownership of property in question.
2. Case: Bonkowski v. Arlan’s Dept. Store - Security Office detained
woman who might have stolen property
a. RULE: Shop keeper has the right to detain one with
reasonable belief for reasonable time.
b. Privilege does not extend to defamation.
 
I. Necessity / Authority of Law / Discipline / Justification
A. Public Necessity
1. Defendant who damages, destroys, or uses Plaintiff’s property in a
reasonable believe that by doing so he can avoid or minimize serious and
immediately injury or harm to the public is protected against liability and
intentional torts.
2. One can be a private citizen or public official
3. Surrocco v. Geary - Burns house to stop wild fire
a. RULE: Necessity provides a privilege to private rights.
 b. City had to burn house in order to prevent fire from
spreading and gaining strength.
c. If property was not taken for public necessity, house would
have burned in fire anyway.
B. Private Necessity
1. Defendant is relieved of liability for technical tort of trespass, but
must compensation Plaintiff for any damage done.
2. Emergency required; Taking of human life is not justified.
3. Plaintiff cannot use force to prevent Defendant’s act.
4. Vincent v. Lake Erie Transport Co. - Ship forced docked ship to
damage dock
a. RULE: Private necessity does not justify taking of public
property without compensation.
B. Justification
1. “Catch All” Privilege
2. Present need to protect persons or property
3. Duty to aid in investigation and apprehension of those inflicting
damage
4. Manner and place of occurrence matter
5. Feasibility and practicality of alternative course of action will be
considered.
6. Sindle v. NYC Transit Authority - Kids vandalizing school bus
a. RULE: Defendant bares burden of proof for justification.
b. Bus driver did what he thought was reasonable to protect
the property (bus) and the persons (kids).
 
I. Negligence
A. Elements for Cause of Action
1. Duty or Standard Care
2. Breach of Duty or Failure to Conform to the Standard of Care
3. Causation “in fact”
4. Proximate Cause
5. Actual Harm
B. Negligence Formula
1. Conduct that falls below the standard of care established by the
law for the protection of other against unreasonable risk of harm
2. Conduct that creates or fails to avoid unreasonable risk of
foreseeable harm to others.
3. B < PL = Burden is less than Probability x Injury (L)
B. Case: Blyth v. Birmingham Waterworks Co. - Water main flooded house
1. RULE: Negligent acts must be intentional and foreseeable.
2. This was an event outside of ordinary circumstances due to the
extreme weather.
B. Case: Pipher v. Parsell - Crazy girl messed with steering wheel
1. Because it was done twice, it was foreseeable, thus the defendant
was negligent.
 2. RULE: Risk has to be foreseeable to impose a duty to care.
B. Case: Chicago v. Krayenbuhl - Boy cut off foot on turntable.
1. Balances cost of precautions against dangers of a particular
activity.
2. It would have been cost effective to put a lock on the turntable.
3. RULE: Consider reasonableness under circumstances.
B. Case: Davison v. Snohomish County - Couple crashed of bridge guardrail
1. Considered cost of additional safety measures and whether those
cost is less than the benefit.
2. Contributorily negligent bars recovery for damages.
B. Case: US v. Carroll Towing - Boat Sunk because Crewman was gone
1. RULE: B > PL
2. Reasonably prudent people take justified precautions not all
precautions.
B. Applicable Standard of Care Elements
1. Foreseeability of Risk
2. Utility of Conduct
3. Extend of Risk / Severity of Harm
4. Likelihood of Risk
5. Cost of Alternative Course of Actions
B. Reasonable Prudent Person
1. A person exercising those qualities of attention, knowledge,
intelligence, and judgement which society requires of its members for the
protection of their own interest and the interests of others.
2. Normal intelligence
3. Normal perception, memory and at least the minimum standard of
knowledge
4. All additional intelligence, skill, or knowledge actually possessed
by the individual actors
5. The physical attributes of the actor himself.
6. Case: Vaughn v. Menlove - Burning of hay rick
a. RULE: Objective standard is used when determining what
a reasonably prudent person would do.
2. Case: Delair v. McAdoo - Tire blow-out caused accident
a. RULE: One is obligated to know matters of common
knowledge or that what the community expects you to know.
b. Everyone is expected to know the information.
c. A 16 year old driver is expected to know what a 40 year
old driver does.
2. Case: Trimarco v. Klien - Shattered Glass Shower Door
a. RULE: Custom is one of the factors to be taken into
consideration when deciding reasonability.
2. Case: Cordas v. Peerless Trans. - Dramatic Story-Like Cabbie
Opinion
a. RULE: Emergency Doctrine
 b. Emergency Doctrine - A reasonable person would act
different under an emergency than he would under ordinary
circumstances.
c. An emergency must be sudden, unforeseen, an unexpected.
d. When an emergency arises from the partial or full
negligence of the action, the emergency doctrine does not apply.
2. Case: Roberts v. Louisiana - Blind Concession Stand Operator
a. RULE: Reasonable person takes on the disabilities that the
actor has. (blindness, deafness, etc.)
b. Only applied to physical disabilities.
 
I. Case: Robinson v. Lindsay - Child on Snowmobile
A. RULE: There is an adult standard of care when a child engages in
risky or dangerous behavior.
B. Ultimately the judge decides whether the child or adult standard of
care applied -- Subjective Test
1. Based on age and intelligence.
B. Rule of 7: Children under 7 years old cannot be held liable for
negligence
1. Between 7 and 14 it is presumed the child is not negligent, but it
can be proven otherwise.
2. Over 14, the child is presumed negligent.
II. Mental Illness
A. Case: Breunig v. American Family Ins. Co. - Lady said she saw God
who told her to fly like Batman
1. RULE: Mental illness is not taken into account when determining
negligence
2. Mentally ill individuals are measured against the reasonable
person standard just as any other adult would be.
B. Case: Heath v. Swift Wings - Husband crashed plane and killed
family
1. Standard of care for professionals should be objective.
2. RULE: A professional is held to the standard of having the ability
and competence of an ordinary member of the profession.
3. A recent medical school graduate is held to the same standard as a
physician.
B. Case: Boyce v. Brown - Doctor did not x-ray ankle after patient
complained of pain
1. RULE: A doctor must use the minimum standard of care that any
other Doctor would use.
2. Not all doctors must use the same standard of care.
3. Failure to take an x-ray of the plaintiff’s ankle at the time cannot
be seen as deviating so far from the ordinary standard that it
would be grossly negligent.
II. Case: Morrison v. MacNamara - National Standard of Care
A. RULE: A national standard of care should apply to an industry
 B. Locality doctrine does is no longer applicable due to the expectation
of the medical field
C. Rural doctors may not provide a substandard of care because they
may be the only doctor in the area and thus can set their own standard.
I. Informed Consent
A. Case: Scott v. Bradford - Dr. failed to tell patient of other remedies and
risks
1. RULE: If the doctor has gotten the patient’s consent but breached
his duty to inform, the patient has a cause of action in negligence for
failure to inform the patient of his or her options, regardless of due
care exercised at treatment, assuming there is injury.
 
I. Three Part Test for Medical Malpractice lacking informed consent
A. Breach of Duty to Inform
B. Causation
1. Subjective - A particular patient would have declined
treatment if fully informed.
2. Objective - Reasonable patient would have declined
treatment if fully informed.
B. Injury
I. Case: Moore v. Regents of U. of California - Dr. testing and patenting
patients blood.
A. RULE: Body parts cannot be converted.
B. RULE: Doctor has an obligation to tell patient of any economical
interest he has in treating the patient.
I. Rules of Law / Violation of Statute
A. Standard of care can be set by the Courts.
B. Statutes can create a cause of action or a defense
C. An action is negligent if the action violates a statute that is designed to
protect the type of accident that happens.
D. Case: Perry v. SN & SN - SAR child abuse case
1. RULE: In the absence of a common law duty to report an activity,
a court will not use a statute to establish duty
2. A common law duty must already exist.
B. Case: Martin v. Herzog - Buggy driving without lights
1. RULE: An unexcused omission of the statutory law is negligence
per se, not evidence of negligence.
B. Case: Zeni v. Anderson - Girl hit woman walking to work in the snow
with car
1. RULE: A violation of statute establishes only a prima facie case of
negligence, a presumption which may be rebutted by a showing on the
part of the party violating the statute of an adequate excuse.
II. Proof of Negligence
A. Circumstantial Evidence
1. Slip and Fall Cases
 a. Notice Requirement: One must prove that the item which
caused the fall had been there for an unreasonable amount of
time in which an employee should have noticed it.
b. Method of Sale: The vendor’s method of sale was
inherently dangerous thus the vendor should have taken steps to
minimize the danger.
B. Res Ipsa Loquitur - The mere fact that the accident occurred raises the
issue of negligence
1. Elements of RIL that the Plaintiff must prove to gain relief
a. An accident
b. Thing that caused the accident was in exclusive control of
the defendant.
c. If the defendant was using ordinary care, the accident is
such that it would not have occurred in the ordinary course of
events.
2. Effects of RIL
a. Inference of Negligence
b. Presumption of Negligence (requiring defendant to come
forward with evidence to rebut)
c. Presumption + Shift of burden or proof to the defendant to
show - by a preponderance of evidence - that he was not
negligent.
2. Case: Byrne v. Boadle - Barrel of flour hit man on the head
a. Established res ipsa loquitur
2. Case: McDougald v. Perry - Tire chain broke and tire hit another
car
a. RULE: If the accident would not have occurred without
negligence, res ipsa loquitur is to be applied.
2. Case: Ybarra v. Spangard - Patient has shoulder pain after
appendectomy
a. Res Ipsa Loquitur applies because it is an injury that
ordinary does not occur without negligence.
b. The plaintiff cannot identify specific defendant who
caused accident because he was unconscious
c. RULE: When plaintiff receives injuries while unconscious
and in the course of medical treatment, all those who had any
control over the patient at any time bare the burden of proof to
show that it was not them who caused the injury.
2. Case: Sullivan v. Crabtree - Passenger killed in car accident
a. RULE: If a vehicle runs off the road without apparent
cause, the normal inference is that the driver is negligent, and
thus res ipsa loquitur applies.
b. Res Ipsa Loquitur warrants the inference of negligence that
the jury may draw or not, as its judgments dictates.
 
 
I. Causation in Fact
A. Sine Qua Non
1. Negligence is not actionable unless it is a cause in fact of the harm
for which recovery is sought.
2. Case: Perkins v. Texas and New Orleans R. Co. - Train speeding
and involved in accident
a. Plaintiff claimed that if the train was going the speed limit
the accident may not have occurred.
b. RULE: Negligence is cause in fact of the harm to another
if it was a substantial factor in bringing about that harm.
c. Court disagrees and says speed was not a substantial
factor; the accident most likely would have occurred regardless.
B. Proof of Causation
1. Harm would not have occurred BUT FOR the defendant’s
negligence.
a. Case: Reynolds v. Texas & Pac. Ry. Co. - Fat woman fell
down stairs at train station
1. RULE: Mere possibility that an accident might
have occurred without the negligence is not sufficient to break
the chain of cause.
2. Defendant’s negligence greatly enhanced the
chance of an accident happening.
b. Case: Gentry v. Douglas Hereford Ranch - Man shot
woman when he slipped on stairs at a ranch
1. Plaintiff failed to prove cause in fact that the
condition of the property caused man to stumble and fall
immediately before rifle discharge.
2. RULE: Plaintiff must produce evidence from
which it can be reasonable inferred that negligent conduct on the
part of the defendant was the proximate cause of the plaintiff’s
injuries.
b. Case: Kramer Service v. Wilkins - Man developed cancer
as spot where glass cut him 3 years earlier.
1. RULE: Plaintiff must show that “more likely than
not” the defendant’s negligence caused the injury.
2. Although experts testified that result of cancer
possible, no one said it was more likely than not to have
occurred.
3. Plaintiff did not fulfill burden of proof.
2. Loss of Chance
a. Case: Herskovits v. Group Health Coop. - Late diagnoses
of lung cancer
1. RULE: A plaintiff may be able to recover for loss
of chance even though the plaintiff cannot prove that it was more
likely than not the defendant’s negligence caused the injury.
 2. More than 50% chance of recovery - Dr.
negligence can be probable
3. Less than 50% chance of recovery - Dr. negligence
cannot be probable. It is more likely the pre-existing disease
caused death.
2. Expert Testimony
a. Case: Daubert v. Merrell Dow Pharmaceuticals - DES
Birth Defects
1. RULE: Experts too must show that the negligence
of the defendant more than likely caused the injuries.
2. The expert only said that the drug could have
caused the injuries not that it was more likely that not to cause.
3. Daubert Test
a. Expert’s testimony must reflect “scientific
knowledge”; derive by “scientific method”; have their work
amount to “good science.”
b. Expert’s testimony must be “relevant to the
task at hand.”
2. Concurrent Events
a. Case: Hill v. Edmonds - Trailer left in the middle of the
road
1. RULE: Both defendants can act in such a way that
the injury would not have occurred “but for” the negligence of
both parties.
b. Case: Anderson v. Minneapolis Railroad - House burned
when 2 fires combined
1. Two “But-For” causes have come together.
2. Plaintiff must argue that the Defendant’s fire was a
substantial factor of the injury.
2. Determining Which Party Caused Harm
a. Case: Summers v. Tice - Two people fired shotgun and
one shot him a man
1. Multiple actors shifts the burden away from the
Plaintiff.
2. The burden can only be shifted after plaintiff
proves that all actors were negligent.
3. RULE: Defendant’s bare burden of proof to
exonerate themselves when there are multiple parties for one
injury.
b. Case: Sindell v. Abbott Labs - Daughter gets cancer from
DES but can’t prove which company made it
1. RULE: One does not have to enjoin all the possible
defendants, just those that make up a significant share of the
market.
 
I. Proximate Cause (Legal Cause)
 A. A legal determination of whether liability should be imposed where cause
has already been established.
B. A legal doctrine that cut off liability for harm even though the harm was
caused by the defendant’s negligent act.
1. It would be unfair or unjust to hold the defendant liable.
B. Unforeseeable Consequences
1. Question of fact for the jury.
2. Case: Ryan v. NY Central RR - Fire moves to next building
a. RULE: Remote damages break the chain of liability.
b. Extenuating circumstances cannot be predicted -- wind,
rain, etc.
2. Case: Bartolone v. Jeckovich - Accident irritated mental condition
a. RULE: Defendants are liable for aggravating a pre-existing
condition.
b. Eggshell Skull Theory: One takes the plaintiff as he is.
Liability is not released because the extent of the physical injury is
greater than what can be foreseen.
2. Case: Polemis & Withy - Ship burned in Morocco
a. RULE: Consequences which follow in unbroken sequence,
without an intervening cause, from the original negligent act are
natural and proximate.
2. Case: Wagon Mound No. 1 & 2 - Ship in Australia harbor
a. RULE: Defendants are liable for negligent conduct that
causes harm of the same general kind that they should reasonably
foreseen and acted to prevent.
2. Case: Palsgraf v. Long Island RR - Scale fell over because of
fireworks package
a. RULE: Defendants are liable for negligent conduct that
injures plaintiffs of the same general class of people who were at risk
from the defendants’s negligence.
b. There is a circle of foreseeability. Anyone outside that
circle cannot claim negligence on the part of the Defendant.
 
 
I. Intervening Causes
A. Intervening Cause: action operates in producing the harm to another after
the actor’s negligence has been committed.
B. Superseding Cause: an intervening cause which the tried of fact
determines is the only proximate cause of the injury and thus does stop
liability.
C. Case: Derdiarian v. Felix Contracting - Employee hit by a car on job site
with no barrier
1. The defendant had a duty to keep his workers safe. The car
accident could have been foreseen.
B. Case: Watson v. Kentucky & Indiana Bridge and RR Co - Gas train
spilled and match was lit.
 1. RULE: An intervening criminal act cuts the chain of liability. If
the intervening criminal act is within the risk created by the defendant,
the defendant may still be liable.
2. Outcome of case depends on the motive of the one who lit the
match to cause the explosion.
B. Case: Fuller v. Preis - Guy committed suicide after car accident
1. RULE: Suicide is a superseding cause.
a. Exception: If the suicide is a continuation of the original
injury. One becomes mentally ill from the accident and suicide is
irresistible.
B. Case: McCoy v. Suzuki Motor Co. - Rescuer killed
1. RULE: It is foreseeable that a rescuer will put himself in danger to
help someone.
2. Rescuer must prove proximate cause and not just that danger
occurred.
II. Public Policy
A. Case: Kelly v. Gwinnell - Social Host Liability
1. RULE: A social host may be liable for a third party injury if he
serves alcohol to a guest knowing he is drunk and driving home.
2. Dissent: Places too high of a burden on the average lay person.
B. Case: Enright v. Eli Lilly & Co. - Granddaughter claimed DES by
Grandmother caused injury to her.
1. RULE: DES cases cannot extend to third generation for the
purpose of public policy.
 
I. Joint Tortfeasors
A. Joint and Several Liability
1. Each of several defendants are liable jointly with the others or
from individual defendants for all the damages against of an indivisible
injury.
B. Joinder of Defendants
1. Case: Bierczynski v. Rogers - Street racing accident
a. RULE: A concert of action between two defendants hold
both liable although only one of the tortfeasors is actually involved in
the injury.
 
 
I. Case: Coney v. JLG Industries - Son killed by manufacturing a machine at
work
A. RULE: Comparative fault does not eliminate joint and several
liability.
B. Comparative Fault: Assigns percentage of fault to all parties involved
in the negligence
1. Pure: Plaintiff can recover no matter what his percentage of fault
is
2. Modified: Plaintiff cannot recover if his fault is greater than 50%.
 II. Case: Bartlett v. New Mexico Welding Supply - 3-Car Pile Up
A. RULE: A defendant cannot be held liable for 100% of the damages
caused by the defendant and an unknown defendant.
I. Satisfaction and Release
A. Case: Bundt v. Embro - Multiple defendants in a car accident.
1. RULE: A plaintiff can get numerous judgments, but can only get
one satisfaction.
2. Judgements are set-off against settlement.
B. Case: Cox v. Pearl Investment Co. - Lady fell on property and signed
release with one defendant.
1. RULE: A covenant not to sue is not a release of liability.
2. For a release of liability to be effective, the party must be named.
II. Contribution and Indemnity
A. Contribution: A tortfeasors right to collect from others responsible for the
same tort after the tortfeasor has paid more than his proportionate share.
B. Indemnity: The right for one who is secondarily liable to recover from the
party who is primarily liable.
C. Case: Knell v. Feltman - Car accident that wanted contribution from non-
party defendant
1. The plaintiff only sued one defendant. The defendant had
judgment rendered against him and sought contribution from the non-
party defendant.
2. RULE: When a tort is committed by the concurrent negligence of
two or more parties who are not intentional wrongdoers, contribution
should be enforced.
B. Case: Slocum v. Donahue - Motorcycle accident that the guy plead guilty
to in criminal court
1. RULE: One cannot seek contribution from a settling party.
2. Indemnity could not be sought because the Defendant and third
party were joint tortfeasors.
II. Apportionment of Damages
A. Case: Bruckman v. Pena - Two accidents happened a year apart.
1. RULE: One cannot be liable for successive injuries especially if
they are indivisible.
2. If one cannot divide the injuries, each tortfeasors can be
responsible for the entire damage.
B. Case: Michie v. Great Lakes Steel - Pollution released into Canada
1. There is no evidence that the injuries are separable.
2. The burden shifts to the defendants to prove they did not cause the
injury or they’ll be held jointly and severally liable.
 
 
I. Case: Dillion v. Twin State Gas & Electric - Boy lost balance on bridge and
grabbed electrical wires.
 A. RULE: Measure of damages is determined by what would have
happened had the electric current had not been running through the
wires.
1. The boy might have slipped and fell off bridge resulting in serious
damages or death, thus recovery is limited.
 
I. Duty of Care
A. One has a duty to conform to the standard of care of a reasonable person
under of ordinary prudence under the circumstances.
1. Exceptions
a. Injuries resulting from a failure to act rather than from an
affirmative act. (nonfeasance v. misfeasance)
. Nonfeasance: A failure to act when under an obligation to do so; a refusal
(without sufficient excuse) to do that which it is your legal duty to do
. Misfeasance: doing a proper act in a wrongful or injurious manner
 
I. Harm other than physical injury or property damage (pure economic
loss; mental distress)
II. Injuries to person who do not yet exist at the time of the actor’s child
(unborn children)
A. Privity of Contract: The relationship between the parties to a contract, allowing
them to sue each other but preventing a third party from doing so.
1. Nonfeasance: There is only a promise and breach. Contract action lies, not
tort action.
a. Case: Winterbottom v. Wright - Wheel fell off mail buggy
1. RULE: Plaintiff cannot recover because there was no
privity between himself and Defendant.
2. Defendant did not have a duty to the Plaintiff.
2. Misfeasance: When there is a contract, but one misperforms the contract.
Tort action may lie.
3. Case: McPhearson v. Buick - Wheel collapsed on car
a. RULE: If the maker of a dangerous product has knowledge that
the product will be used by persons other than the purchaser, and used
without new tests, then, irrespective of contract, the manufacturer of
this thing of danger is under a duty to make it carefully.
b. If one is negligent, where danger is to be foreseen, a liability will
follow.
B. Failure to Act
1. Common Law: No liability for failure to act.
2. Exceptions
a. Defendant or his instrumentality, innocently or not, created the
risk.
b. Defendant had a special relationship with the plaintiff that is
deemed to create a duty of care (business and customer).
c. Defendant takes affirmative action that is cut short or performed
negligently.
 d. Defendant assumed affirmative duty by action promise
 
 
 
A. Case: L.S. Ayres v. Hicks - Boy got hand stuck in escalator
1. RULE: If there is a special relationship between the parties (inviter
(store) / invitee (customer)) or that which is causing the injury is under
the exclusive control of the defendant, a duty is established.
B. Case: JS & MS v. RTH - Wife knew of husbands child abuse
1. RULE: When a spouse has actual knowledge or reason to know of the
likelihood of her spouse engaging in sexually abusive behavior against
a particular person, the spouse has a duty of care to take reasonable
steps to prevent or warn of the harm.
a. A breach of such duty will constitute as proximate cause for the
resulting injury.
b. Factors determining Duty
1. Foreseeability
2. Opportunity to exercise care to prevent the harm
3. Relationship of the parties
B. Case: Tarasoff v. Regents of Univ. of California - Patient told doctor he
planned to kill someone.
1. RULE: Once a mental health professional should have or did
determine under ethical standards that the patient poses a serious
danger to others, he has a duty to exercise reasonable care to protect
the foreseeable (known) victim.
2. Court balances doctor/patient confidentiality with protection of third
parties.
A. Pure Economic Loss
1. Case: State of Louisiana v. Testbank - Ship released toxins into the
Mississippi River
a. RULE: Physical damages to person or property have to occur in
order to recover for pure economic damages.
b. In the best interest of public policy to create the bright line rule.
B. Emotional Distress
1. Courts now use a reasonable person standard to determine if one can
recover for emotional distress which results from negligence of someone
else.
2. Bystander Test - Plaintiff must have witnessed the scene in order to
recover.
3. Zone of Impact - Plaintiff must have been within the zone of impact in
order to recover.
4. Case: Delay v. LaCroix - Car accident caused electrical explosion
a. Abolished the physical impact rule in Michigan and created an
objective test.
1. One can recover is the impact would cause emotional
distress to the reasonable person.
 2. There must be a natural physical manifestation as a result
of the emotional distress.
2. Case: Things v. La Chusa - Mother heard about son’s car accident
a. RULE: The plaintiff who suffered emotional distress must have
reasonably foreseen the injury to the plaintiff.
1. Bystander Test
a. Plaintiff must have been located near the accident
b. There must be a special relationship between the
plaintiff and victim
c. Plaintiff suffered shock from direct emotional
impact.
B. Unborn Children
1. Case: Endresz v. Friedberg - Woman in car accident 7 mo. pregnant and
had still birth
a. RULE: A wrongful death action may not be maintained for death
of an unborn child.
b. In order for death to occur, birth must occur first.
2. Case: Procanik v. Cillo - Son born with disease due to misdiagnoses of
mother
a. Doctors were negligent in treating the mother. The negligence
deprived the parents of choice of terminating the pregnancy.
b. RULE: A child or his parents may recover special damages for
extraordinary medical expenses incurred during infancy, and that the
infant may recover those expenses during his majority.
c. Wrongful life causes of action are allowed in very few
jurisdictions.
 
A. Owners and Occupiers of Land
1. Outside the Premises
a. Generally, neither a possessor of land, nor a vendor, lessor, or
other transferor, is liable for physical harm caused to others outside of the
land by a natural condition of the land.
b. Once land is altered, it becomes artificial and the owner must
exercise reasonable care.
c. A possessor of land in an urban area is subject to liability to
persons using public highway for physical harm resulting from his failure to
exercise reasonable care.
d. A duty is owed to a traveler who accidentally falls into excavations
of land.
e. Case: Salevan v. Wilmington Park - Passer-by hit by a baseball
from inside the park
1. The nature of a baseball game requires precaution and the
particular location can make it necessary for the protection of a person
lawfully using the highways.
2. Although the defendant took precautions, he knew or
should have known they were insufficient.
2. On the Premises
a. Trespassers - A person who enters/remains upon the land in the
possession of another without privilege to do so created by the possessor’s
consent.
1. Attractive Nuisance: One may be liable for children if
there is something on the property that would attract the children and
may case injury.
2. Generally no duty to protect from physical injury caused
by owner’s failure to use reasonable care
a. If the possessor knows or has reason to know of the
trespasser, he may owe a duty; but knowledge alone is not
enough.
2. Case: Sheehan v. St. Paul Railroad - Man got shoe stock
on railroad and was hit by train
a. RULE: A trespasser who ventures upon a track for
any purpose of this own assumes all risks of the conditions which
may be found there, including the operation of engines and cars.
b. Licensees - A person who is privileged to enter or remain on the
land only by virtue of the possessor’s consent. (Social guests)
1. A licensee must take the premises of his host as he finds
them.
2. Case: Barmore v. Elmore - Guest hurt by owner’s son
a. RULE: The owner of the premises has a duty to
warn the licensee of any hidden dangers which are unknown to
his guests, of which he, the owner, has knowledge, and to refrain
from injuring his guests willfully or wantonly.
b. Invitees - A business visitor who is invited to enter of remain on
the land for the purpose directly or indirectly connected to the nature of the
business.
1. The owner wants an invitee on the property.
2. Generally a business owner needs to take care of their
business so that customers are not injured.
3. Case: Campbell v. Weathers - Man fell in trapdoor when
using restroom at store
a. Plaintiff was injured when he stepped into an open
trap door while using the restroom at a lunch counter.
b. The plaintiff was a frequent visitor; however, this
one time plaintiff did not buy something.
c. Defendant tried to claim that the plaintiff did not
purchase something so he owed no duty to the plaintiff.
d. RULE: Court said plaintiff is still an invitee
regardless of purchasing something
2. Case: Whelan v. Van Natta - Store owner told man to get
the box he wanted.
a. Plaintiff fell down stairs when he went to the back
and get the box
 b. RULE: If one goes beyond the limited of the
invitation, one does not remain an invitee but a licensee.
c. There are spacial and temporal limits on being an
invitee.
b. Rejection of Categories
1. Case: Rowland v. Christian - Cracked toilet handle
a. Abolished classification of invitee, trespasser,
licensee.
b. RULE: It doesn’t matter who you are, you are
owned a duty of care when on the property of another.
b. Lessors & Lessee
1. General Rule: A lessor is under no duty to make leased
property safe. There are 6 exceptions.
2. Exceptions
a. Known to lessor and undisclosed to lessee
b. Conditions dangerous to lessee outside premises
c. Premises leased for admission to the public
d. Parts of land in lessors control which lessee is
entitled to use
e. Where lessor contracts to repair
f. Negligence by lessor in making repairs
2. Case: Borders v. Roseberry - Guest of a lessee slipped
a. RULE: The lessee of a house is in possession of the
land and bares the burden of maintaining the premises in a
reasonable safe condition. Landlord has no duty.
2. Case: Pagelsdorf v. Safeco Insurance Co. - Man fell off
railing at apartment
a. Abolished general rule
b. RULE: Landlords must exercise ordinary care
towards tenant and others on the premises to prevent from harm
and injury.
2. Case: Kline v. 1500 Mass. Ave. Apt. Complex - Woman
assaulted in apartment hallway
a. RULE: Landlord must provide protection since he
is the one who has exclusive control over the common areas.
b. Landlords are justified in passing on the increase
costs of insurance to the tenants.
 
A. Damages
1. A sum of money awarded to a person injured by the tort of another
2. Compensatory Damages - Damages awarded to a person as compensation,
indemnity, and restitution for harm sustained by him.
3. Nominal Damages - Small sum award to the plaintiff to vindicate rights.
Normally $1.
 4. Punitive Damages - Damages awarded against a person to punish him for
his outrageous conduct and to deter him and other like from similar conduct in the
future.
5. Personal Injury Damages
a. Compensation for time loss, expenses (past and future), and pain
and suffering.
b. Case: Anderson v. Sears & Roebuck - Infant burned in heater fire
1. Elements of Damages
a. Past Physical and Mental Pain
b. Future Physical and Mental Pain
c. Future Medical Expenses
d. Loss of Earning Capacity
e. Permanent Disability and Disfigurement
2. Because the $2M award fell into the $3M cap the judge
figured, it was reasonable.
3. Evidence supports the award.
b. Case: Richardson v. Chapman - Flight attendant injured in wreck
1. Plaintiff was rendered a quadriplegic.
2. Plaintiff was given $22M in damages by the trial court.
3. Evidence did not support all of the damages assessed in the
categories.
4. The court will not compare damages of other cases
 
 
 
A. Collateral Source Doctrine - Plaintiff has their own insurance that helps pay for
part of the medical expenses incurred due to the injury caused by the defendant.
1. Case: Montgomery Ward v. Anderson - Plaintiff fell and got half off
discount of medical bill.
a. Montgomery Ward does not get credit for the plaintiff’s discount
b. A defendant should not be rewarded for their wrong doing
c. RULE: Forgiveness of debt from a medical source is collateral.
1. Exceptions for use of collateral source
a. To rebut plaintiff’s testimony that he was
compelled by financial necessity to return to work
prematurely.
b. To show that the plaintiff had attributed his
condition to some other cause.
c. To impeach the plaintiff’s testimony that he paid
for his own medical expenses.
d. To show the plaintiff continued to work instead of
being out of work, like claimed.
B. Mitigation of Damages
1. Plaintiff has a duty to mitigate the damages if it is reasonable and
appropriate.
2. Religious objection to surgery does not negate mitigation.
 3. Case: Zimmerman v. Ausland - PE teacher did not want surgery to fix
knee and couldn’t work.
a. RULE: Plaintiff cannot recover for the permanency of an injury
which a reasonable person would choose to repair with simple surgery.
b. Test: Under the circumstances of a particular case, would a
reasonable prudent person submit to the surgery?
c. Factors considered: Risk, percentage of success, costs, and pain.
B. Physical Harm to Property
1. If an item is converted, a plaintiff can recover its market value.
2. RS § 911 - If the property is only damaged, the recovery is the difference
in value of before and after the damage.
3. If it’s economical to repair the property, then it’s the value of repair and
that of loss during repair.
B. Punitive / Exemplary Damages
1. Given to punish the defendant, not compensation for the plaintiff.
2. Deterrence for others like the defendant.
3. In Texas, punitive damages cannot be rewarded on nominal damages.
4. Not awarded for simple or ordinary negligence; must be for outrageous
conduct.
5. The jury has the discretion to award punitive damages and the amount
6. State court may not assess punitive damages for incidents that occurred in
outside the state.
7. Punitive damages are subject to the due process clause of the Constitution.
8. Case: Cheatham v. Pohle - X-Rated pictures of ex-wife released by
husband
a. There is no constitutional right to punitive damages.
b. The state statute that required 75% of punitive damages to go to
the state, did not violate the takings clause.
c. RULE: Punitive damages are not rewarded for the benefit of the
plaintiff.
2. Case: State Farm Ins. Co. v. Campbell - Insurance company went to trial
against all advice.
a. $2.6M in compensatory damages; $145M in punitive damages.
b. Issue: Is the amount of punitive damages excessive?
c. BMW v. Gore is the leading case in punitive damages.
1. Car was repainted and the plaintiff was untold when he
bought the car.
2. Gore gets $4M in punitive damages. Case is appealed to
the USSC.
b. The court assessed damages for a nationwide policy, which is
outside of the state.
c. Damages were so excessive to violate the due process clause.
d. Guideposts for Punitive Damages
1. Degree of reprehensibility.
2. Ratio of $P to $C damages.
3. Sanctions for comparable misconduct
 b. Plaintiff is made whole by compensatory damages, not punitive
damages.
2. Case: Exxon Shipping Co. v. Baker - Oil Spill in Alaska
a. Exxon Valdez spilt millions of gallons of oil into Prince William
Sound in Alaska
b. Compensatory Damages: $507M; Punitive Damages: $2.5B
c. RULE: Established the ratio of 1:1 in maritime law; punitive
damages reduced to $507M.
 
A. Wrongful Death and Survival
1. In common law, personal actions died with the parties.
a. If the victim died, no lawsuit; if the tortfeasor died, no lawsuit.
2. It was more profitable to kill a man than it was to scratch him.
3. Wrongful Death Statutes
a. Created an independent cause of action for a discrete group of
beneficiaries.
b. Case: Moragne v. States Marine Lines, Inc. - Shoreman killed
working on a ship out at sea.
1. An action for wrongful death exists for a violation of
maritime duties.
2. RULE: An action for actual damages arising from an
injury that causes an individual’s death may be brought if liability
exists.
b. Exclusive benefit belongs to surviving spouse, children, and
parents of the deceased.
1. Must bring suit within 3 months. If not, an administrator
can bring a suit on their behalf.
b. There can be recovery in the event that the tortfeasor died before or
during the suit.
c. In Texas, damages cannot exceed $500K; Texas allows punitive
damages in wrongful death by statute.
d. If there are not beneficiaries, there is no wrongful death suit.
e. Case: Selders v. Armentrout - Minor kids killed in a car accident
1. RULE: Recovery of damages for loss of society, comfort,
and companionship.
2. Not looking at future wages or economic value to the kids.
 
 
A. Survival Statutes
1. Address the common law rule that the cause of action dies with the party.
2. The estate of the deceased may bring a claim to recover for the persons
injuries from the time he was injured until death.
3. Case: Murphy v. Martin Old Co. - Man died a week later from injuries
a. Plaintiff’s wife is bringing a suit for survival
b. Issue: Can P maintain a cause of action and recover damages for
the 9 days he survived his injuries before he died? Yes!
 c. The action can be brought by the administrator.
d. RULE: Damages for pain and suffering are allowed only if the
deceased is conscious of it.
 
A. Defenses
1. Contributory Negligence
a. Case: Butterfield v. Forrester
1. RULE: One person being at fault does not excuse the other
party of using ordinary care.
2. Butterfield was contributorily negligence.
3. Plaintiff’s negligence was a superseding cause
2. Doctrine of Last Clear Chance (only applies with contributory negligence
a. Case: Davie v. Mann - Donkey left in the middle of the road
1. Plaintiff left his donkey in the middle of the road
2. Defendant hit and killed the donkey
3. Defendant had the last clear chance to avoid the accident.
2. Comparative Negligence
a. Barring a plaintiff’s recovery if the plaintiff’s fault is greater than
50%. (Modified Comp. Neg.) (TX)
b. Plaintiff is compared to the combined total percentage of fault of
all defendants.
c. Plaintiff may recover no matter how great or little their fault is
(Pure)
d. The plaintiff can only recover if is negligence is slight opposed to
gross (Slight/Gross)
e. Case: McIntyre v. Balentine
1. Adopted a modified comparative negligence scheme
2. The trier of fact compares the plaintiff’s negligence to the
defendants, each settling person, and each responsible third party.
3. If defendants are greater than 50% liable or there was
action in concert, joint and several liability is still in tact.
2. Assumption of the Risk
a. A plaintiff who voluntarily assumes the risk of harm arising form
the negligence or reckless conduct of the defendant cannot recover.
b. Plaintiff does not assume the risk of harm unless he voluntarily
accepts the risk
c. If defendant’s tort leaves the plaintiff with other reasonable means,
there is no assumption of risk.
d. Express Assumption of the Risk
1. Case: Seigneur v. National Fitness Institute, Inc. -
Injured while working out
a. Plaintiff signed a release upon joining a fitness
club.
b. Plaintiff was injured and release was held valid,
thus she was barred from recovery.
2. Courts will not uphold exculpation clauses where:
 a. The party protected by the clause intentionally
causes harm or engages in act of reckless, wanton, or gross
negligence.
b. When the bargaining power of one party to the
contract is so grossly unequal as to put that party at the mercy of
the other’s negligence.
c. When the transaction involves public interest.
b. Implied Assumption of the Risk
1. Implied assumption of the risk is consumed by
comparative fault.
2. Case: Rush v. Commercial Realty Co. - Woman fell
through the trap door in the outhouse
a. Plaintiff did not assume the risk; she was not
required to go elsewhere to use the restroom.
b. Did the plaintiff have knowledge of the risk,
appreciation of the risk, and voluntarily encourage the risk?
c. RULE: Subjective Standard
a. What did the specific plaintiff realize, not a
reasonable person.
b. It’s essential to show the plaintiff has
knowledge of the risk and must voluntarily encounter it.
b. If the defendant has been reckless, assumption of the risk will
remain but contributory negligence will not
c. Plaintiff’s protest against the conduct of the defendant is evidence
that the plaintiff does not consent to assume the risk.
d. Voluntary participant of a sports activity is not owed a duty to
prevent harm by owners or other parties.
2. Statutes of Limitations and Repose
a. SOL: The given amount of time in which someone can file a claim
or counterclaim.
b. SOL can depend on the type of action being claimed.
1. Torts it is generally 2 years.
b. SOL normally begins to run when the injury is happened.
1. Exceptions
a. Discovery Rule for medical malpractice
a. The statute begins when the plaintiff knows
or should have known of the injury.
b. Continuing Tort
a. Time does not start running until the course
of treatment is complete.
b. Tolling
c. Fraudulent Concealing (Equitable Tolling)
2. SOL stops running once the claim has been filed.
3. If you’re in the armed forces, the statute is put on hold
until you get out.
2. Immunities
a. Immunity bars liability even though there would generally be a
cause of action.
b. Absolute Immunity - President, judges, legislators, etc. are
absolutely immune during the course of their duty.
c. Intra-Spousal / Family Immunity
1. Case: Freehe v. Freehe - husband hurt on wife’s tractor
a. Abolished intra-spousal immunity
a. Destroyed peace in the home
2. Case: Zellmer v. Zellmer - Child drowned while watched
by step-father
a. Does parental immunity extend to step-parents?
a. They may be held responsible for
intentional misconduct or reckless disregard to the child.
b. The step-parent must stand in loco parentis.
c. Cannot claim parental immunity just
because a step-parent married the biological parent.
b. California’s reasonable parent standard is rejected
because Judges and juries will implant their own view for child
rearing.
b. Charity Immunity
1. Case: Abernathy v. Sisters of St. Mary’s
a. RULE: No immunity for a charitable hospitals
against the negligence of a patient.
2. In Texas, it’s governed by statute.
b. Employer immunity
1. An employee cannot file a tort claim against this employer
or co-employee even if they were negligent.
b. State and Local Government Immunity
1. Case: Clarke v. Oregon Health Sciences Univ. - Baby
deprived of oxygen during surgery
a. Oregon cannot constitutionally limit the damages.
2. Texas has waived it’s sovereign immunity, but it is limited.
a. State is liable for property damage, etc.
2. Case: Riss v. NYC - Woman terrorized by ex-boyfriend
and ignored by the cops.
a. The police do not have a duty to protect a specific
citizen.
b. Juries don’t need to second guess how the money
should be allocated within the police.
2. Case: DeLong v. Erie County - called 911 and the operator
gave the police the wrong address
a. Plaintiff relied on the duty of the 911 dispatcher to
her detriment.
b. RULE: Once one takes on the responsibility, he has
a duty to do so reasonably.